Three churches in Texas are suing the Federal Emergency Management Agency (FEMA) for barring them from applying for government grants to help rebuild their churches, alleging that their inability to compete for funding amounts to religious discrimination.

In the aftermath of Hurricane Harvey, President Trump declared a major disaster area in the affected regions. That declaration means that FEMA can begin providing grants under its Public Assistance Program. That program allows FEMA to give grant money to “a private nonprofit facility damaged or destroyed by a major disaster for the repair, restoration, reconstruction, or replacement of the facility and for associated expenses.” This allows nonprofits of all kinds to receive rebuilding funds as long as they are open to the public and provide non-critical but essential services.  

FEMA defines “non-critical but essential” fairly broadly and includes things like arts programs, libraries, senior citizen centers, and zoos. It excludes churches, however, because to include churches would mean that the taxpaying public was subsidizing the reconstruction of religious facilities. The three Texas churches, however, argue that the U.S. Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer controls here and they should therefore receive the rebuilding grants.

This isn’t surprising, given that the churches in this case are represented by the Becket Fund, the same conservative litigation mill that represented Trinity Lutheran in its U.S. Supreme Court challenge and advocates broadly for state funding of conservative religious activities and beliefs.

In Trinity Lutheran, the Supreme Court held that taxpayer dollars could be used to refurbish a playground owned and run by Trinity Lutheran Church. The majority found that Trinity was being discriminated against based on its religious identity, but noted that its ruling was limited to discrimination with regard to playground resurfacing. In theory, that means Trinity can’t be used for non-playground-resurfacing cases, but conservative religious groups have already tried to use the holding in Trinity to attack prohibitions on voucher programs, for example.

In this Texas case, the churches argue that since Trinity required government grant money flow to the church, FEMA is required to fund their rebuilding because the government is now required to give grant money to religious entities as well as secular. The Becket Fund in its press release on the case points out that FEMA gives rebuilding money to things that Becket presumably finds trivial, like an octopus research center and a botanical garden, with the implicit message that if the government funds those programs, it is obliged to fund the rebuilding of churches.

Of course, there is a reason FEMA bars public assistance funds from going to churches: because the churches want to use the money to rebuild their church facilities. In Trinity, there was theoretically some distance between the church and the playground the church wished to refurbish. The playground was for a day care center owned and operated by the church, but a playground is a distinctly secular entity that can be used by the public, separate from any religious entanglement. A church, however, is by definition primarily used as a house of worship. But as the churches point out in their Texas complaint, their facilities can be used for other purposes, including as a staging ground for hurricane relief efforts.

This case, of course, isn’t just about whether these churches can receive FEMA money. It was brought by the Becket Fund for the same reason the organization brought the Trinity case: to expand the ways in which the government is forced to fund religion.